Handling menopause in the workplace

Claire Brook outlines potential HR pitfalls surrounding menopausal employees

Credit: Thomas Barwick/Getty Images

Emerging discrimination case law has highlighted the disadvantages faced by employees experiencing the menopause – an aspect fast becoming recognised as one of the biggest workplace equality issues. 

Menopause and the law

In July 2021, the Women and Equalities Committee launched an enquiry into menopause and the workplace. The move was designed to assess whether enough is being done to prevent women suffering adverse consequences arising from the menopause; to present recommendations to address gender inequality and to assess whether menopause should become a new protected characteristic under the Equality Act 2010. 

At present, individuals pursuing discrimination complaints relating to the menopause must issue age, sex and/or disability discrimination claims to seek redress under the Equality Act 2010. The committee has heard evidence that these protected characteristics are ‘ill fitting’ and that, for example, individuals may not wish to seek to claim that they are disabled, particularly given the personal nature of the symptoms often associated with the menopause that would need to be disclosed in order to meet the test to establish disability protection. 

For those individuals who have sought to pursue disability protection, case law has already found that perimenopause (see Ms M Davies v Scottish Courts and Tribunal Service) can be a disability, with the employee’s dismissal arising in consequence of her symptoms. 

Donnachie v Telent Technology Services found that the substantial effect of menopause symptoms – including hot flushes accompanied by palpitations and anxiety – had impacted negatively on the claimant’s ability to perform day-to-day activities. The judge in her findings said she could “see no reason why typical menopausal symptoms [could not] have the relevant disabling effect on an individual”.

Most recently, an Employment Appeal Tribunal decision in Rooney v Leicester City Council confirmed that severe menopause symptoms qualify as a disability. That poses the question of whether businesses should make reasonable adjustments for the menopause in the workplace. If a worker meets the definition of disability, then employers will be under a positive duty to make reasonable adjustments.

In any event, the Health and Safety at Work Act 1974 requires employers to ensure the health, safety and welfare of their workforces and to conduct specific risk assessments – just like with mental health and pregnancy risk assessments. 

The consequences of ‘banter’

It’s also important to train employees regarding dignity and respect about the consequences of what at first seems to be harmless banter, but which could cause serious issues such as formal complaints (including harassment), an erosion of trust and confidence in the workplace, sickness absence and increased attrition in addition to the financial and reputational costs of claims.

Training and raising awareness of appropriate workplace communication, dignity and respect is critical.  In A v Bonmarche Ltd, the claimant succeeded in her claims for age and sex discrimination after being subject to inappropriate comments, including being called a “dinosaur” and was continually criticised in front of others. Her colleagues were found to have picked up on the smallest of mistakes, linking them to her being menopausal, which was held to be unlawful harassment.

A complaint was upheld on the grounds of both sex and age harassment, with the employee awarded almost £28,000 in compensation for loss of earnings and injury to feelings.

To avoid the potential HR pitfalls surrounding menopausal members of staff, we advise employers to follow the below steps:

  • consult employees regarding your approach to supporting workers with menopause;

  • create a menopause policy as part of that consultation;

  • provide regular awareness training for staff and incorporate menopause into your equality, dignity and respect training schedule;

  • appoint a ‘menopause champion’ or committee to help communicate messaging and coordinated training;

  • encourage teams to avoid inappropriate jokes or ‘banter’;

  • ensure you have a supportive culture in place;

  • consider health and safety risk assessments for those individuals within the workplace who are experiencing menopause, just as you would undertake a stress or pregnancy risk assessment;

  • update relevant policies such as anti-harassment and bullying, gossiping, dignity at work, equality and diversity, flexible working and data protection.

Many businesses will be identifying their budget for a year’s worth of training now and looking at what to focus on. I would highly recommend that equality training including appropriate reference to menopause is included.

Claire Brook is an employment partner at Aaron & Partners